O'Sullivan v Reedy [1953] HCA 36

High Court of Australia Williams A.C.J. Webb, Fullagar, Kitto and Taylor JJ. O'Sullivan v Reedy [1953] HCA 36

The following judgments were delivered:

Williams A.C.J.

This is an application for special leave to appeal from an order of the Full Supreme Court of South Australia made on 29th April, 1953, whereby it was ordered that the appeal be allowed, the order of Mr. Justice Mayo be set aside and the order of dismissal made by the court of summary jurisdiction at Prospect be restored.

The origin of the proceedings was a complaint laid on 22nd July, 1952, that Wilfred Charles Reedy had in his possession personal property to wit 225 pieces of Baltic red deal which prior to the making of this charge might have been reasonably suspected of having been stolen or unlawfully obtained contrary to the provisions of s. 93 (1) of the Police Act 1936-1951. Before a plea was taken from the defendant his counsel, Mr. Pickering, took objection to the sufficiency of the complaint and the magistrate upheld the contention though not on the precise ground that succeeded in the Full Court. There was an appeal to the Supreme Court which was heard in the first instance by Mayo J. who allowed the appeal and remitted the matter to the court of summary jurisdiction for hearing. From the order of Mayo J. there was an appeal to the Full Court which made the order to which I have already referred.

The application to us for special leave raises the true interpretation of s. 93 (1) of the Police Act 1936-1951 S.A. and, in particular, the words in that sub-section "may at any time prior to the making of such charge have been reasonably suspected of having been stolen or unlawfully obtained at the time of being in his possession or being conveyed by him". The question is whether the words "might have been" which appear in the complaint are sufficient to support the principal ingredient of the offence or whether this ingredient is only properly alleged if the word "was" is substituted for those words, so that it is necessary to prove that prior to the making of the charge some person had formed a reasonable suspicion that the goods had been stolen &c.